Senate Republicans continue to push back against the White House's new legislation authorizing trials for enemy detainees held at Guantanamo Bay. According to today's New York Times, the sticky wicket is no longer the provision in the Bush version of the bill that bars detainees from seeing the evidence against them. While it looks like a compromise has been reached on that front, senior GOP senators are apparently unwilling to budge on another: the White House version's effort to suck the blood out of the Geneva Conventions when it comes to making rules for interrogating foreign detainees.
The proposed Bush standard—detainees cannot be subjected to treatment that "shocks the conscience"—certainly sounds like it precludes torture. One would imagine that it would also extend to what professor Marty Lederman calls "torture light": exposure to extreme temperatures, stress positions, threats to kill the prisoner's family, the stacking up of naked bodies, threats with dogs, and water-boarding.
If we can agree on anything, can't we agree that what we saw at Abu Ghraib shocked the conscience?
But "shocks the conscience" is a significant departure from the language of the Geneva Conventions, which (in now-famous Common Article 3) bars ''outrages upon personal dignity, in particular, humiliating and degrading treatment." And that's why Sens. John McCain, R-Ariz., John Warner, R-Va., and Lindsey Graham, R-S.C., are still blocking the White House's efforts to cut and paste their new definition of torture onto the law.
But the president remains adamant. In a speech last week accompanying his proposed legislation, Bush claimed that "humiliating and degrading" is just too vague a standard, whereas "shocks the conscience" would give interrogators the legal clarity they need.
No, it wouldn't. For one thing, there's no reason to believe that an interrogator faced with a ban on behavior that "shocks the conscience" will have any better sense of a legal line in the sand than one faced with a ban on "outrages upon personal dignity." One of the real attractions of the "shocks the conscience" language, as noted in this Washington Post piece, is that it allows for "some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information." In other words, it creates a flexible legal standard, whereas the Geneva language creates a clear legal rule, at least according to international law. Those of us who might oppose torturing Osama Bin Laden's chiropodist could thus still get behind torturing someone with information on a ticking time bomb. But with the shift from legal rules to standards comes increased ambiguity. And the definition of torture is not something that should turn on such subtlety.
Here's another attractive aspect of the president's "shocks the conscience" language: It can change over time. What former Department of Justice lawyer Jay Bybee deemed "torture" in his infamous August 2002 torture memo—conduct resulting in "organ failure, impairment of body function, or even death"—suggests that not all American consciences are created equal. And if we start to rely on a "shocks the conscience" test for brutalizing interrogation, our collective conscience may get tougher every day. Perhaps the reason the president can now so glibly gloss over "alternative" methods like those we saw in images from Abu Ghraib is because what so shocked our conscience then does not have the power to do so anymore.
The president himself raises the real reason for the change in the torture standard. He can't get his interrogators to interrogate people as long as they are afraid of being dragged into court to answer for it later. The administration has been worried about its interrogators' liability for their abuses since the debate about suspending Geneva began. And again yesterday, the president was emphatic in his contention that "as long as the War Crimes Act hangs over their heads, they [interrogators] will not take the steps necessary to protect" Americans. The War Crimes Act of 1996, passed by a Republican Congress, made it a felony to violate the Geneva Conventions. But while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity.
If the president is merely worried about legal liability for his interrogators, there are other legal mechanisms, some already in place, to protect them. As Lederman points out at Balkinization today, section 6 of the Warner/McCain/Graham bill already effectively prevents overseas detainees from challenging in court "the fact or conditions of their detention or interrogation." And if there can be no judicial oversight of the laws pertaining to the detainees, it hardly matters what the law says. Moreover, as today's Los Angeles Times points out, Section 1004 of the Detainee Treatment Act already allows interrogators accused of abusive detention and interrogation practices to offer as a defense the claim that they "did not know that the practices were unlawful and [that] a person of ordinary sense and understanding would not know the practices were unlawful." And since not one person has yet been prosecuted under the War Crimes Act, despite hundreds of documented cases of detainee abuse, it's hard to believe that the president is really losing sleep over his Justice Department prosecuting CIA interrogators.
The best evidence we have that Bush has no real interest in clarifying the new legal standards for "torture" is this: He refuses to be specific about what sorts of conduct he has authorized. If Bush really wanted the CIA to have perfect clarity about which behaviors are tolerable and which are not, he would identify with great specificity the various "alternative" techniques he has approved for them. But last week, the president declined to do so, claiming that he "cannot describe the specific methods used—I think you understand why—if I did, it would help the terrorists learn how to resist questioning." Bush cannot be specific about what he's allowed because it might reveal to terrorists exactly how much water-boarding they must to learn to endure. Perhaps. But then he cannot claim that what he seeks to do is clarify the law for interrogators.
The new legal standard is indeterminate for both the prospective torturers and their victims. And that's precisely how the president wants it.
In a superb article last fall in the Columbia Law Review, professor Jeremy Waldron argued that there is "something wrong with trying to pin down the prohibition on torture with a precise legal definition." That it seems to "work in the service of a mentality that says, 'Give us a definition so we have something to work around, something to game, a determinate envelope to push.' " And indeed it would be worrisome if the president were trying to create a sharp, bright line-rule for when interrogation crosses into torture, so that his agents could dance right up to it and stop, or find tricky ways to tunnel under it. But I suspect that the Bush administration doesn't seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don't work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.
I once suggested in the context of presidential signing statements that legal obfuscation is enormously attractive to President Bush. It means all but the most highly credentialed law professors and government lawyers are constantly confused; it means subsequent legal claims that interrogators "did not know that the practices were unlawful" have real credibility. And perhaps, most importantly to this White House, it obscures where things have gone awry up and down the chain of command. One possibility, then, is that all these eleventh-hour redefinitions of torture are presidential attempts to "afford brutality the cloak of law," in the words of Supreme Court Justice Felix Frankfurter. But increasingly, it seems clear that its real purpose is simply to brutalize the law.